Lauer v. Green , 38 Mich. App. 81 ( 1972 )

38 Mich. App. 81 (1972) 195 N.W.2d 781

LAUER
v.
GREEN
LAUER
v.
FINLEY

Docket Nos. 11769, 11770.

Michigan Court of Appeals.

Decided January 21, 1972.

Marcus, McCroskey, Libner, Reamon & Williams (by Robert J. VanLeuven), for plaintiffs.

Murchie, Calcutt & Brown (by Dennis L. Huntley), for defendant.

Before: R.B. BURNS, P.J., and FITZGERALD and V.J. BRENNAN, JJ.

Leave to appeal denied, 387 Mich. 765.

FITZGERALD, J.

These civil actions are consolidated before the Court on appeal as of right from judgments entered against defendant-appellant on April 26, 1971, in the Circuit Court for the County of Manistee after trial by the court without a jury on February 16, 1971. Claim of appeal was filed on May 12, 1971.

On April 23, 1966, at about 11:20 a.m., the defendant-appellant, Michael Green, was driving an automobile owned by him at the intersection of US 31 and Merkey Road in Filer Township, Manistee County, Michigan. The plaintiffs were passengers in the car with him. The group belonged to the Jehovah's Witnesses. At the time of the accident, they were going out into the community to teach those who were not affiliated with this organization to understand the Bible and attain personal salvation according to the Jehovah's Witnesses' biblical interpretations.

At said intersection, a collision occurred between defendant-appellant's automobile and a car owned by defendant Jerome Nickelson and being driven by defendant Myra Irene Finley, as a result of which the plaintiffs were injured and these actions were instituted.

Plaintiff Sharon Lauer, a minor, by the guardian of her estate, Edwin Lauer, filed suit against defendant Michael Green as well as the owner and driver of the automobile with which defendant Michael Green collided. In a separate action, plaintiff Edwin Lauer sought damages from defendant Michael Green alone.

After a pretrial hearing, the court consolidated the two actions. Defendant Michael Green thereafter filed his motions for summary judgment in the two-captioned matters. These motions were denied.

On February 16, 1971, both matters were tried to the court without a jury. Defendant-appellant then moved for directed verdicts at the close of all of the proofs. These motions were also denied by the trial court. The court entered a judgment of no cause of action for defendants Finley and Nickelson, concluding that the former had not been negligent in operating the latter's automobile. Judgment was entered against defendant-appellant and in favor of plaintiffs pursuant to a finding that plaintiffs and defendant-appellant were joint venturers and that the latter had been negligent in operating his vehicle.

On appeal, the sole issue before this Court is whether the lower court erred in finding that plaintiffs were engaged in a joint venture with defendant-appellant at the time of the accident in question so as to render the guest passenger statute, MCLA 257.401; MSA 9.2101, inapplicable.

The establishment of a joint venture or joint enterprise renders the guest passenger act inapplicable. MCLA 257.401; MSA 9.2101. Boyd v McKeever, 384 Mich. 501 (1971). Therefore, a proper test must be applied to the facts to determine whether the parties were engaged in a joint venture. The most recent test was enunciated in Boyd, supra, where the Court stated that the test of a joint venture as set forth in Emons v Shiraef, 359 Mich. 526 (1960), places too much emphasis on the element of right of control. The Boyd Court established a three-pronged rule, p 508:

"To constitute a joint enterprise between a passenger and the driver of an automobile within the meaning of the law of negligence, there must be a community of interest in the use of the vehicle; there must be a finding of common responsibility for its negligent operation; and it must be found that the driver is acting as the agent of the other members of the enterprise." (Emphasis supplied.)

The trial court did not apply this exact standard. In its opinion, citing Emons, supra, as authority, it established the following test:

"The case law merely states the following requirements:

"(1) There must be a community of interest in the objective or the purpose of the undertaking.

"(2) An equal right to direct and govern the movements and the conduct of each other, and

"(3) Each must have some voice and right to be heard in its control or management."

The first requirement in the trial court test, community of interest, agrees with the test set down in Boyd, supra. In the instant case, all parties in the defendant-appellant's car were serving the church. They were evangelizing and preaching the word of Jehovah. The trial court correctly determined that there was a community of interest in the objective or purpose of the undertaking.

The second requirement set out by the trial court, an equal right to direct and govern the movements and the conduct of each other, meets the third criterion set out by Boyd regarding the status of the driver as the agent of the other members of the enterprise. The Supreme Court could not have intended that the strict law of agency be applied to joint enterprise because if the driver was agent for the other passengers, then the law, which states that the principal is liable for the acts of the agent, would act as a bar to any action brought on the grounds of joint enterprise, because the passengers, principals, would always be responsible for the acts of the driver. This Court adopts a more reasonable interpretation. The driver must be an agent for the others in that he adopts the behavior the group decides upon. The group decides the movements and conduct of all of the persons in the automobile. The driver then follows the directions dictated by the group decision. That is the exact situation in the instant case. Defendant-appellant followed the decisions made by the group. The trial court correctly found this element to be present.

Seemingly, the third criterion set by the trial court was incorrect because the Supreme Court, in Boyd, p 508, specifically states that too much emphasis has heretofore been placed on control. The Supreme Court apparently replaces this test with "a finding of common responsibility for its negligent operation". The Court does not elaborate on the meaning of that language, but the Court in Emons, supra, p 531, quoted approvingly the following statements in Farthing v. Hepinstall, 243 Mich. 380, 382 (1928):

"To constitute a joint enterprise between a passenger and the driver of an automobile within the meaning of the law of negligence, there must be such a community of interest in its operation as to give each an equal right of control. There must be a common responsibility for its negligent operation, and there can be no common responsibility unless there is a common right of control." (Emphasis supplied.)

Furthermore, a literal translation of the second requirement of the Boyd test, in light of the language in Emons, would imply contributory negligence as a prerequisite to a finding of joint enterprise. This interpretation would preclude recovery in any joint enterprise situation. This could not have been the intent of the Supreme Court.

This Court finds that the trial court substantially complied with the second criterion of the Boyd test. This requirement was satisfied in that all the parties in the car mutually decided the course of action taken by the driver. Peer group pressure alone provided sufficient control over the driver to constitute common right of control. Furthermore, a joint decision was made as to where the field ministry work was to be done and the mode of transportation to be used to reach the agreed-upon destination. The automobile was merely the tool for carrying out the prearranged plans. Each member in the auto did in fact share in the control of this tool.

The three criteria set forth in Boyd were met under the test utilized by the trial judge in the case at hand. Therefore, plaintiffs were engaged in a joint venture with defendant-appellant at the time of the accident in question so as to render the guest passenger statute inapplicable.

Affirmed with costs to the plaintiffs-appellees.

All concurred.